|Notes on the Debates in the Federal Convention
By James Madison
July 23, 1787
Monday July 23, 1787
Mr. John Langdon and Mr. Nicholas Gilman from New Hampshire, took their seats.
Resolution 17. That provision ought to be made for future amendments of the articles of Union, agreed to, nem con.
Resolution "requiring the Legislature, Executive and Judiciary, of the States to be bound by oath to support the articles of
Union," taken into consideration.
Mr. WILLIAMSON suggests that a reciprocal oath should be required from the National officers, to support the
Governments of the States.
Mr. GERRY moved to insert as an amendment that the oath of the officers of the National Government also should extend to
the support of the National Government which was agreed to nem con.
Mr. WILSON said he was never fond of oaths, considering them as a left handed security only. A good Government did not
need them, and a bad one could not or ought not to be supported. He was afraid they might too much trammel the members of
the existing Government, in case future alterations should be necessary; and prove an obstacle to Resolution 17 just agreed to.
Mr. GHORUM did not know that oaths would be of much use; but could see no inconsistency between them and the 17th
Resolution, or any regular amendment of the Constitution. The oath could only require fidelity to the existing Constitution. A
constitutional alteration of the Constitution, could never be regarded as a breach of the Constitution, or of any oath to support
Mr. GERRY thought with Mr. Ghorum there could be no shadow of inconsistency in the case. Nor could he see any other
harm that could result from the Resolution. On the other side he thought one good effect would be produced by it. Hitherto the
officers of the two Governments had considered them as distinct from, not as parts of the General System, and had in all
cases of interference given a preference to the State Governments. The proposed oaths will cure that error.
Resolution 18 was agreed to nem con.-
Resolution 19. "referring the new Constitution to Assemblies to be chosen by the people for the express purpose of ratifying
it" was next taken into consideration.
Mr. ELSEWORTH moved that it be referred to the Legislatures of the States for ratification. Mr. PATTERSON 2nded. the
Col. MASON considered a reference of the plan to the authority of the people as one of the most important and essential of
the Resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and can
not be greater than their creators. And he knew of no power in any of the Constitutions, he knew there was no power in some
of them, that could be competent to this object. Whither then must we resort? To the people with whom all power remains
that has not been given up in the Constitutions derived from them.
It was of great moment he observed, that this doctrine should be cherished as the basis of free Government. Another strong
reason was that admitting the Legislatures to have a competent authority, it would be wrong to refer the plan to them, because
succeeding Legislatures having equal authority could undo the acts of their predecessors; and the National Government would
stand in each State on the weak and tottering foundation of an Act of Assembly. There was a remaining consideration of some
weight. In some of the States, the Governments were not derived from the clear and undisputed authority of the people. This
was the case in Virginia Some of the best and wisest citizens considered the Constitution as established by an assumed
authority. A National Constitution derived from such a source would be exposed to the severest criticisms.
Mr. RANDOLPH. One idea has pervaded all our proceedings, to wit, that opposition as well from the States as from
individuals, will be made to the system to be proposed. Will it not then be highly imprudent, to furnish any unnecessary pretext
by the mode of ratifying it. Added to other objections against a ratification by Legislative authority only, it may be remarked
that there have been instances in which the authority of the Common law has been set up in particular States against that of
the Confederation which has had no higher sanction than Legislative ratification.
Whose opposition will be most likely to be excited against the System? That of the local demagogues who will be degraded by
it from the importance they now hold. These will spare no efforts to impede that progress in the popular mind which will be
necessary to the adoption of the plan, and which every member will find to have taken place in his own, if he will compare his
present opinions with those brought with him into the Convention.
It is of great importance therefore that the consideration of this subject should be transferred from the Legislatures, where this
class of men have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of
consideration that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless
expressly called upon to refer the question to the people.
Mr. GERRY. The arguments of Col. Mason and Mr. Randolph prove too much; they prove an unconstitutionality in the
present federal system even in some of the State Governments. Inferences drawn from such a source must be inadmissible.
Both the State Governments and the federal Government have been too long acquiesced in, to be now shaken. He considered
the Confederation to be paramount to any State Constitution. The last article of it authorizing alterations must consequently be
so as well as the others, and every thing done in pursuance of the article must have the same high authority with the article.
Great confusion he was confident would result from a recurrence to the people. They would never agree on any thing. He
could not see any ground to suppose that the people will do what their rulers will not. The rulers will either conform to, or
influence the sense of the people.
Mr. GHORUM was against referring the plan to the Legislatures.
1. Men chosen by the people for the particular purpose, will discuss the subject more candidly than members of the
Legislature who are to lose the power which is to be given up to the General Government.
2. Some of the Legislatures are composed of several branches. It will consequently be more difficult in these cases to get the
plan through the Legislatures, than through a Convention.
3. In the States, many of the ablest men are excluded from the Legislatures, but may be elected into a Convention. Among
these may be ranked many of the Clergy who are generally friends to good Government. Their services were found to be
valuable in the formation and establishment of the Constitution of Massachusetts.
4. The Legislatures will be interrupted with a variety of little business, by artfully pressing, which designing men will find
means to delay from year to year, if not to frustrate altogether, the national system.
5. If the last article of the Confederation is to be pursued the unanimous concurrence of the States will be necessary.
But will any one say, that all the States are to suffer themselves to be ruined, if Rhode Island should persist in her opposition to
general measures. Some other States might also tread in her steps. The present advantage which New York seems to be so
much attached to, of taxing her neighbors by the regulation of her trade, makes it very probable, that she will be of the
number. It would therefore deserve serious consideration whether provision ought not to be made for giving effect to the
System without waiting for the unanimous concurrence of the States.
Mr. ELSEWORTH. If there be any Legislatures who should find themselves incompetent to the ratification, he should be
content to let them advise with their constituents and pursue such a mode as would be competent. He thought more was to be
expected from the Legislatures than from the people. The prevailing wish of the people in the Eastern States is to get rid of the
public debt; and the idea of strengthening the National Government carries with it that of strengthening the public debt It was
said by Col. Mason
1. That the Legislatures have no authority in this case.
2. That their successors having equal authority could rescind their acts.
As to the 2nd point, he could not admit it to be well founded. An Act to which the States by their Legislatures, make
themselves parties, becomes a compact from which no one of the parties can recede of itself. As to the 1st point, he observed
that a new set of ideas seemed to have crept in since the articles of Confederation were established. Conventions of the people,
or with power derived expressly from the people, were not then thought of. The Legislatures were considered as competent.
Their ratification has been acquiesced in without complaint.
To whom have Congress applied on subsequent occasions for further powers? To the Legislatures; not to the people. The fact
is that we exist at present, and we need not enquire how, as a federal Society, united by a charter, one article of which is that
alterations therein may be made by the Legislative authority of the States. It has been said that if the confederation is to be
observed, the States must unanimously concur in the proposed innovations. He would answer that if such were the urgency
and necessity of our situation as to warrant a new compact among a part of the States, founded on the consent of the people;
the same pleas would be equally valid in favor of a partial compact, founded on the consent of the Legislatures.
Mr. WILLIAMSON thought the Resolution 19, so expressed as that it might be submitted either to the Legislatures or to
Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the
system. He thought too that Conventions were to be preferred as more likely to be composed of the ablest men in the States.
Mr. Govr. MORRIS considered the inference of Mr. Elseworth from the plea of necessity, as applied to the establishment of
a new System on the consent of the people of a part of the States, in favor of a like establishment on the consent of a part of
the Legislatures as a non sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous
consent of the Legislatures. Legislative alterations not conformable to the federal compact, would clearly not be valid. The
Judges would consider them as null and void.
Whereas in case of an appeal to the people of the United States, the supreme authority, the federal compact may be altered by
a majority of them; in like manner as the Constitution of a particular State may be altered by a majority of the people of the
State. The amendment moved by Mr. Elseworth erroneously supposes that we are proceeding on the basis of the
Confederation. This Convention is unknown to the Confederation.
Mr. KING thought with Mr. Elseworth that the Legislatures had a competent authority, the acquiescence of the people of
America in the Confederation, being equivalent to a formal ratification by the people. He thought with Mr. Elseworth also, that
the plea of necessity was as valid in the one case as in the other. At the same time he preferred a reference to the authority of
the people expressly delegated to Conventions, as the most certain means of obviating all disputes and doubts concerning the
legitimacy of the new Constitution; as well as the most likely means of drawing forth the best men in the States to decide on it.
He remarked that among other objections made in the State of New York to granting powers to Congress one had been that
such powers as would operate within the State, could not be reconciled to the Constitution; and therefore were not grantable
by the Legislative authority. He considered it as of some consequence also to get rid of the scruples which some members of
the State Legislatures might derive from their oaths to support and maintain the existing Constitutions.
Mr. MADISON thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make
essential inroads on the State Constitutions, and it would be a novel and dangerous doctrine that a Legislature could change the
constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a
power to the Legislature to concur in alterations of the federal Compact. But there were certainly some which had not; and in
the case of these, a ratification must of necessity be obtained from the people.
He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the
true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as
the latter. In point of political operation, there were two important distinctions in favor of the latter.
1. A law violating a treaty ratified by a pre-existing law, might be respected by the Judges as a law, though an unwise or
perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null
2. The doctrine laid down by the law of Nations in the case of treaties is that a breach of any one article by any of the parties,
frees the other parties from their engagements. In the case of a union of people under one Constitution, the nature of the pact
has always been understood to exclude such an interpretation. Comparing the two modes in point of expediency he thought all
the considerations which recommended this Convention in preference to Congress for proposing the reform were in favor of
State Conventions in preference to the Legislatures for examining and adopting it.
On question on Mr. Elseworth's motion to refer the plan to the Legislatures of the States:
New Hampshire, no; Massachusetts, no; Connecticut, aye; Pennsylvania, no; Delaware, aye; Maryland, aye; Virginia, no;
North Carolina, no; South Carolina, no; Georgia, no.
Mr. Govr. MORRIS moved that the reference of the plan be made to one general Convention, chosen and authorized by the
people to consider, amend, and establish the same. -Not seconded . On question for agreeing to Resolution 19, touching the
mode of Ratification as reported from the Committee of the Whole; viz. to refer the Constitution after the approbation of
Congress to assemblies chosen by the people:
New Hampshire, aye; Massachusetts, aye; Connecticut, aye; Pennsylvania, aye; Delaware, no; Maryland, aye; Virginia, aye;
North Carolina, aye; South Carolina, aye; Georgia, aye:
Mr. Govr. MORRIS and Mr. KING moved that the representation in the second branch consist of _____ members from
each State, who shall vote per capita.
Mr. ELSEWORTH said he had always approved of voting in that mode.
Mr. Govr. MORRIS moved to fill the blank with three. He wished the Senate to be a pretty numerous body. If two members
only should be allowed to each State, and a majority be made a quorum, the power would be lodged in 14 members, which
was too small a number for such a trust.
Mr. GHORUM preferred two to three members for the blank. A small number was most convenient for deciding on peace
and war, etc., which he expected would be vested in the 2nd branch. The number of States will also increase; Kentucky,
Vermont, the Province of Maine and Franklin will probably soon be added to the present number. He presumed also that some
of the largest States would be divided. The strength of the General Government will lie not in the largeness, but in the
smallness of the States.
Col. MASON thought 3 from each State including new States would make the 2nd branch too numerous. Besides other
objections, the additional expense ought always to form one, where it was not absolutely necessary.
Mr. WILLIAMSON. If the number be too great, the distant States will not be on an equal footing with the nearer States. The
latter can more easily send and support their ablest Citizens. He approved of the voting per capita.
On the question for filling the blank with "three."
New Hampshire, no; Massachusetts, no; Connecticut, no; Pennsylvania, aye; Delaware, no; Virginia, no; North Carolina, no;
South Carolina, no; Georgia, no.
On question for filling it with "two." Agreed to nem con.
Mr. L. MARTIN was opposed to voting per Capita, as departing from the idea of the States being represented in the 2nd
branch. Mr. Carroll, was not struck with any particular objection against the mode; but he did not wish so hastily to make so
material an innovation.
On the question on the whole motion viz. “the 2nd branch to consist of two members from each State and to vote per capita."
New Hampshire, aye; Massachusetts, aye; Connecticut, aye; Pennsylvania, aye; Delaware, aye; Maryland, no; Virginia, aye;
North Carolina, aye; South Carolina, aye; Georgia, aye.
Mr. HOUSTON and Mr. SPAIGHT moved "that the appointment of the Executive by Electors chosen by the Legislatures of
the States, be reconsidered." Mr. Houston urged the extreme inconveniency and the considerable expense, of drawing together
men from all the States for the single purpose of electing the Chief Magistrate.
On the question which was put without any debate.
New Hampshire, aye; Massachusetts, aye; Connecticut, aye; Pennsylvania, no; Delaware, aye; Maryland, no; Virginia, no;
North Carolina, aye; South Carolina, aye; Georgia, aye.
Ordered that tomorrow be assigned for the reconsideration. Connecticut and Pennsylvania, no - all the rest, aye.
Mr. GERRY moved that the proceedings of the Convention for the establishment of a National Government (except the part
relating to the Executive), be referred to a Committee to prepare and report a Constitution conformable thereto.
Gen. PINKNEY reminded the Convention that if the Committee should fail to insert some security to the Southern States
against an emancipation of slaves, and taxes on exports, he should be bound by duty to his State to vote against their Report.
The appointment of a Committee as moved by Mr. Gerry. Agreed to nem con.
Shall the Committee consist of 10 members one from each State present? All the States were no, except Delaware, aye.
Shall it consist of seven members?
New Hampshire, aye; Massachusetts, aye; Connecticut, aye; Pennsylvania, no; Delaware, no; Maryland, aye; Virginia, no;
North Carolina, no; South Carolina, aye; Georgia, no.
The question being lost by an equal division of Votes.
It was agreed nem con, that the Committee consist of 5 members, to be appointed tomorrow.
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